Guessing who deserves to die

There I was in the car yesterday driving back to the office from Wharton County and Houston Matters popped up on KUHF, the local NPR affiliate. The topic was capital punishment and the guests were David Dow, a law professor at the UH Law Center and founder of the Texas Innocence Project, and Maria McAnulty, the trial chief from the Harris County District Attorney's Office.

Things got interesting when it was pointed out that defendants facing the death penalty in Harris County tend disproportionately to be black, Hispanic and/or poor. Mr. Dow pointed out that there aren't any rich folks sitting on death row in Texas. He also pointed out that of the last 15 prisoners from Harris County who were executed, only 2 weren't black or Hispanic.

Ms. McAnulty seemed to take great offense to the notion that race played a factor in determining who was sentenced to death in Harris County. She took great pains to lay out a process by which the District Attorney makes the final decision without knowing the race or ethnicity of either the defendant or the victim. While the elected DA makes the final decision, that decision is made based upon the advice provided by the trial prosecutors and the trial chief - all of whom know the race or ethnicity of everyone involved. Don't even try to tell me that it didn't factor into the equation.

But what I found most intriguing was the discussion on the special questions jurors in capital cases are asked after a defendant has been convicted. They are first asked whether they believe, beyond a reasonable doubt, that the defendant would probably constitute a "continuing threat to society."

Now let's just think about that for a second. Forget about this notion of beyond a reasonable doubt because the jury is being asked whether they think it's more likely than not that the defendant would remain a threat to society if he were allowed to live. That's not even close to the requisite burden of proof. That's just asking someone if they're damn sure someone might do something bad in the future.

It's only if the jury answers the question "yes," that they decide whether or not the defendant should die.

But if that's the criteria for deciding who lives and who dies, then shouldn't the behavior of the prisoner after the conviction be taken into account? If the jury thinks it's more likely than not that the defendant will continue to be a bad person, shouldn't evidence that the prisoner has behaved and worked to improve himself be relevant to whether or not the execution should go forward?

We all mock death row inmates who find Jesus or Allah or some other mythological figure while sitting confined to a cell 23 hours a day. We mock those who ask for forgiveness. We scoff at supporters who say the condemned man has changed since being convicted.

But should we?

Isn't that evidence that the jurors got it wrong? If we're going to continue to operate under this fiction that past performance is evidence of future behavior, then we need to look at the converse. If what we observe tends to disprove what we thought, maybe we were mistaken in the first place.

And should we allow those mistakes to determine whether someone lives or dies?

Maybe we should just use a deck of Tarot cards next time.